London and District Service Workers' Union, Local 220 v. Grace Villa Chronic Care Hospital, 1988 CanLII 3723

London and District Service Workers' Union, Local 220 v. Grace Villa Chronic Care Hospital

[1988] OLRB Rep. September 894

3294-87-R London and District Service Workers' Union, Local 220, S.E.I.U., A.F.L., C.I.O., C.L.C., Applicant v. Grace Villa Chronic Care Hospital, Respondent v. Group of Employees, Objectors

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members J. W. Murray and E. G. Theobald.

APPEARANCES: Randy Levinson, Kirsten Bradley and Jack Nicholls for the applicant; Edward V. Johnson, Charles Micallef and Virginia Murphy for the respondent; J. H. McNair and John Pethick for the objectors.

DECISION OF LOUISA M. DAVIE, VICE-CHAIR, AND BOARD MEMBER E. G. THEOBALD; September 12, 1988

1. This is an application for certification in which the parties met with a Labour Relations Officer on the day scheduled for hearing of this matter and reached a partial agreement on the issues in dispute. The parties were unable to agree on the inclusion or exclusion of maintenance employees in the description of the bargaining unit. In addition, there were challenges to the list. The applicant took the position that Mr. John Pethick, Physiotherapy Aide, ought to be excluded from the bargaining unit by reason of the bargaining unit description and the fact that his commu­nity of interest lies with the paramedical unit. The respondent took the position that Mr. Ken Sur­ette, maintenance, should be excluded from the bargaining unit since he exercises managerial func­tions within the meaning of section 1(3)(b) of the Act, or that he is employed in a confidential capacity in matters relating to labour relations. The respondent's alternative position is that main­tenance employees do not have a community of interest with the bargaining unit members and should be excluded.

2. Seven statements of desire were filed with the Board containing a total of twenty-one names. Based on the membership evidence filed and the overlap between employees who signed union membership evidence and the statements of desire, the statements of desire were found to be "relevant". By decision of the Board dated April 28, 1988, the Board requested the Registrar to schedule this matter for hearing to hear the evidence and representations of the parties with respect to the voluntariness of the statements of desire, as well as those issues which remained in dispute between the parties.

3. The matter came on for hearing in the City of London on June 16 and June 17, 1988. At the commencement of the hearing, the applicant withdrew its challenge to the list regarding John Pethick. All parties agreed that Mr. Pethick was properly included in the bargaining unit. There­after, the Board commenced its inquiry with respect to the voluntariness of the statements of desire. The Board was unable within the two days scheduled for hearing to commence its inquiry into the duties and responsibilities of Mr. Ken Surette and the remaining outstanding issue as to his inclusion or exclusion from the bargaining unit, or as to whether maintenance employees were to be included or excluded from the bargaining unit description. At the conclusion of the second day of hearing, the Board advised the parties that it would appoint a Labour Relations Officer to inquire into the duties and responsibilities of Mr. Ken Surette and to report to the Board.

4. Counsel for the group of employees called three witnesses, Mr. John Pethick, the per­son primarily responsible for the origination and circulation of the petition, Ms. Dorothy Hunter and Ms. Agnes McKenzie. Counsel for the employer chose not to call any witnesses while counsel for the applicant called Ms. Dawn (Donna) West. Each witness was extensively cross-examined by counsel for the other parties. The evidence of each of these witnesses is briefly summarized below. In assessing the evidence of all the witnesses, we have taken into account the usual factors includ­ing the consistency of the witnesses' evidence, their demeanour while testifying, their response in cross-examination, their ability to resist the influence of self-interest to modify their recollection, and what appears to be reasonably probable when the circumstances and testimony are considered. We have also considered the parties' submissions concerning the evidence of the witnesses.

5. Grace Villa Chronic Care Hospital ("Grace Villa") is a sixty-bed chronic care facility located at 201 Riverside Drive in the City of London. Mr. John Pethick is a physiotherapy aide who has been employed at the hospital for the past two years. Mr. Pethick's duties are performed by him throughout the hospital. He does however have a desk area in an office located in the base­ment of the hospital. He shares this office with both his supervisor, Ms. Pat Cream, who is the occupational therapist for the hospital, as well as the assistant occupational therapist. This office area houses the patient files and records, and the equipment of the occupational therapy depart­ment. The office is located across from the staff lunchroom. This lunchroom is used only by the non-managerial staff of the hospital.

6. Mr. Pethick first became aware of the union's attempts to organize the employees at Grace Villa in the beginning of March 1988. At that time he was approached to join the union and indicated that he did not wish to do so. The green sheets indicating that the union had applied for certification were posted on March 9, 1988. Mr. Pethick testified that after the green sheets were posted there was some discussion amongst the staff about the union.

7. At some point during the day, Mr. Pethick decided to draft and circulate a petition in opposition to the union. That night, at around supper time, he telephoned Dorothy Hunter, a fel­low employee. He placed the call from his home. Mr. Pethick called Ms. Hunter because he knew that several years ago Ms. Hunter had circulated a petition in oppositicin to a union at Grace Villa. Mr. Pethick asked for, and obtained advice from, Ms. Hunter about the drafting of the petition and its circulation. That same night Mr. Pethick telephoned a friend whom he felt was familiar with this type of matter. His friend came over and the two discussed the petition. His friend advised him to ensure that management was not involved with the petition. Mr. Pethick also tes­tified that he read some books about labour relations including the Gu;ide to the Labour Relations Act which persons can acquire from the Board. It was Mr. Pethick's evidence that he had obtained these books several years ago while he was employed at Kennick Barber and Beauty Supply. He stated that he obtained the material because he "wanted some general information". Mr. Pethick also commenced to telephone some fellow employees on March 9, 1988.

8. On March 10th Mr. Pethick took the petition which he had drafted the previous evening to work. Rather than recounting in detail the exact time and place when each signature on the peti­tion was obtained, it is sufficient to note that over the course of the next several days Mr. Pethick obtained the signatures of several employees (P7, P22, P8, P9, PlO, P11, P15, P4, P17, P18, PS and P2) in the employee lunchroom. The signatures of P12, P1 and P20 were obtained in the Grace Villa parking lot at a time when those employees were not scheduled to work. The remaining sig­natures (P13, P14, P6, P3, P16 and P19) were obtained at these employees' residence. Mr. Pethick retained custody and control of the petition until it was mailed to the Board. He kept the petition either at his home, at his desk at work hidden underneath the bottom shelf which lifts up, or in his duffel bag underneath a compartment that raises up. Mr. Pethick did not discuss the procedure to be followed in respect of the application with any member of management. He has not made any arrangements or agreements with his employer with respect to his legal expenses, stating instead that some employees have contributed while he has paid the balance. Similarly, he attended the first day of hearing in Toronto and has not received any money from his employer to cover his expenses for attendance at that hearing. In order to attend he arranged to take one of his floating holidays.

9. Mr. Pethick testified that there was no pressure placed on the employees to sign the petition. The general thrust of his evidence was that employees were aware of his opposition to the union and his circulation of the petition. Indeed all the witnesses were in agreement that Grace Villa was a relatively small work environment where word of the petition got around quickly. Some of the employees knew of the petition by "word of mouth", and therefore approached Mr. Pethick directly. Others who signed were contacted by Mr. Pethick. Mr. Pethick testified that those who signed the petition did so because they wanted a "free" and "open vote" on the issue of union representation. Mr. Pethick testified that he did not approach his fellow employees while they were on duty.

10. In respect of the signatures that were obtained in the lunchroom, Mr. Pethick testified that those signatures were obtained while the employees were either having their break, or at the commencement or end of the employees' shift. With the exception of the signatures of P7, P9, P2 and perhaps P4 no other employee, other than Mr. Pethick and the sigrtatory were present in the lunchroom on those occasions. In the case of P4, Mr. Pethick indicated that other employees, but not management personnel, might have been present when P4 signed. The only other person present when P7, P9 and P2 signed was Ms. McKenzie. The evidence of Ms. McKenzie however indicated that employees normally take their breaks in shifts and at regular times. Their first break is usually from 9:25 to 9:45 a.m. At that time three employees, one from each area of the hospital, take their break. The second break is from 9:45 to 10:05 a.m. That break is attended by two employees from each area of the hospital for a total of six employees. Similarly, three employees are scheduled for the first lunch break, from 12:00 to 12:30 p.m. while the remaining six employees take their lunch break from 12:30 to 1:00 p.m. It would therefore appear to be somewhat unusual for only the signatory to the petition and Mr. Pethick to be in the lunchroom.

11. For his part, Mr. Pethick testified that his break and lunch periods were "flexible" and that he was the only employee who had the option to "split" his lunch break rather than taking the entire thirty-minute period "en bloc". In cross-examination, Mr. Pethick testified that he normally works alongside his supervisor Ms. Cream, that Ms. Cream normally knows when he is taking his lunch, and that most of the time he and Ms. Cream take their lunch break together and eat their lunch in the lunchroom together. Apart from Ms. Cream, the only other supervisory person who frequents the employee lunchroom is the head of the housekeeping department. Mr. Pethick stated on several occasions however that no member of management, and specifically Ms. Cream, was ever present when the petition was signed in the lunchroom. On those occasions Mr. Pethick did not take his lunch or break with Ms. Cream.

12. Similarly, the signatures of some employees were obtained at the end of their shift (11:00 p.m. - 7:00 a.m.) when Mr. Pethick commenced his own shift (7:00 a.m. - 3:00 p.m.). In this regard Mr. Pethick stated that he is normally at work around 6:20 a.m. while his supervisor nor­mally arrives at 6:50 - 6:55 a.m. Most employees arrive prior to the start of their shift. Before the start of a shift therefore there are normally four or five persons in the lunchroom. When PlO signed at the end of PlO's shift however, no other employee was present. When P4 signed at the end of P4's shift, Mr. Pethick did agree that there "might have been someone else" in the room.

13. The substance of the preceding evidence was corroborated by Ms. Hunter who testified about the telephone conversation with Mr. Pethick, and by Ms. McKenzie, who testified about her limited involvement with the petition. Ms. McKenzie's evidence also confirmed the fact that from the day the green sheets went up there was quite a bit of discussion among employees and that employees knew of the petition by word of mouth. From the totality of the evidence we conclude that the fact that a petition in opposition to the union was being circulated by John Pethick was well known at Grace Villa and was certainly not a secret.

14. There were however some areas of Mr. Pethick's evidence which was either contradic­tory or which was contradicted by the other witnesses. In assessing this contradictory or contra­dicted evidence we have considered the impact of the contradictory or contradicted evidence not only when assessing the credibility of Mr. Pethick on particular matters, but more importantly the impact of such evidence on Mr. Pethick's evidence as a whole. In addition, we must address the effect, if any, of six separately-written letters revoking membership in the union by persons who subsequently signed the petition.

15. Mr. Pethick testified that as employees signed the petition he covered up all the other names which had already been placed on the petition with a piece of paper or cardboard. In this way, employees were shown only the heading to the petition and their own signature. In cross-ex­amination Ms. McKenzie however agreed with counsel that Mr. Pethick "just gave the paper" to employees and "they signed". In argument, counsel for the union pointed to this contradiction when making his arguments about Mr. Pethick's credibility. In our view, the mere fact of these two apparently contradictory statements are insufficient and are as easily attributable to the method and manner in which counsel phrased their questions as to a lack of candour on either witnesses' part.

16. The second inconsistency between the evidence of Ms. McKenzie and Mr. Pethick how­ever is not as easily explained. Mr. Pethick specifically stated that he I)aid all postage cost himself "out of my own pocket". Ms. McKenzie testified that the cost of the postage was split stating that she thought it was eleven dollars and that she split the cost because John "took the bother". Such contradictory evidence is not easily attributable to mere vagueness of recollection, hazy memory or the manner in which counsel phrased the question.

17. A third inconsistency or conflict in the testimony of Ms. McKenzie and Mr. Pethick centres around the events of March 16th. Initially, Ms. McKenzie testified that Mr. Pethick showed her the petition after he had obtained all the signatures on the petition and prior to its posting. She thought that Mr. Pethick probably showed her the petition after they had clocked out and as they were going home. At that point they discussed sending the petition by registered mail etc. Given the facts that the last signatures on the petition were obtained on March 16th, that Ms. McKenzie specifically testified that the last signature was on the petition when she last saw it, and that the petition was mailed on the 16th of March, we were led to the inevitable conclusion that the conver­sation which Ms. McKenzie recollected must have taken place on March 16th as the employees were leaving at the end of their shift. In redirect, Ms. McKenzie however agreed that she could not say for sure that the conversation did occur on the 16th. For the obvious reasons set out below, such a conversation could not possibly have taken place on that day under those circumstances. On the whole, we find that we cannot accept Ms. McKenzie's evidence as reliable. The weight to be attributed to her evidence is minimal. The kindest view that can be placed on her recollection of events is that she has a vague and hazy memory, a less kind view is that she was deliberately trying to attempt to mislead the Board. In the circumstances of this case, it is not necessa₁y for us to determine which of these two assessments is the appropriate one. It is sufficient to state that we have discounted Ms. McKenzie's evidence as unreliable.

18. Before we turn to a more in depth review of the events of March 15th and 16th, we wish to deal briefly with the evidence of Ms. West. Ms. West testified that on Monday, March 14th she witnessed and overheard an exchange between Mr. Pethick and Ms. Cream on the stairs leading from the basement lunchroom to the first floor. According to Ms. West, Ms. Cream was descend­ing the stairs while Mr. Pethick was on his way up. When the two passed each other, Ms. Cream asked Mr. Pethick how things were going with the petition to which l%4r. Pethick replied that "it looks okay, I think we're alright". As this exchange took place, Ms. West was several steps below the two. She continued on her way up the stairs and passed Mr. Pethick and Ms. Cream without comment or acknowledgement. Ms. West mentioned this comment to a fellow employee, June Millar, several days later, but made no further mention of it to anyone else. In fact, she did not mention it to anyone else until the first day of the hearing of evidence in this case. This notwith­standing the fact that she had been instructed by the union to "keep an eye out" or "ears open for anything unusual at the hospital". Ms. West acknowledged in cross-examination that at the time she overheard this conversation, Mr. Pethick would be aware of the fact that she did not support his efforts in respect of a petition in opposition to the union's application for certification. Indeed, she agreed that by that time Mr. Pethick would know where she stood in this matter. It is also important to note that when the substance of this alleged conversation was put to Mr. Pethick in cross-examination, he initially replied "I don't recall that". When pressed and asked if he denied such conversation having taken place he responded "I don't remember" and subsequently stated "I'm not admitting it either".

19. We note that Ms. West's evidence was received by the Board over the objection of counsel for the employer and counsel for the objectors. The position of counsel for the employer, with which counsel for the objectors concurred was that the substance of Ms. West's evidence was to allege "improper or irregular conduct" on the part of the employer and ought to have been pleaded with particularity by the union in accordance with Rule 72. Counsel pointed to the fact that this was in essence the third day of hearing although it was only the second day of hearing of the evidence. To permit the introduction of the evidence at that stage of the proceedings without granting to the respondent an adjournment so that full particulars could be provided in accordance with Rule 72(1) would result in prejudice to the respondent. For his part, counsel for the union indicated that the information had only been disclosed to him during the course of the first day of the hearing of evidence, that he had raised the matter as soon as he became aware of it and indeed had put the alleged conversation to Mr. Pethick during cross-examination without objection from either counsel. It was his position that at the very least the evidence of Ms. West would go towards the issue of the credibility of Mr. Pethick and ought to be admitted. He further argued that an adjournment ought not to be granted regardless of whether the evidence went to allegations of improper or irregular conduct or merely Mr. Pethick's credibility. At the hearing the Board orally ruled that the evidence would be received as it went towards credibility and that counsel for the respondent would certainly be given an opportunity to address the evidence of Ms. West by way of reply evidence. Although we admitted Ms. West's evidence we note that we have placed no weight on it and her evidence has had no effect on our ultimate determination of this matter. The alleged conversation, if it did take place in the manner and under the circumstances described by Ms. West (and we make no finding that such a conversation did in fact take place), would not have had an effect on our final decision in the circumstances of this case.

20. We now return to a more detailed review of the events of March 15th and 16th. The substance of Mr. Pethick's evidence-in-chief was that on March 15th he obtained the signatures of P4, P1, P16, P17, P18, PS and P2 (whose signatures appear in that sequence on the petition). Although the date next to P16's signature is March 16, 1988, Mr. Pethick testified that the only sig­natures obtained on March 16th were the signatures of P19 and P20. In light of this evidence and the fact that the four signatures immediately following P's signature are all dated as March 15th, we conclude that P16 signed the petition on March 15th and not on March 16th as indicated. In addition, we note that Mr. Pethick testified that he received individually-written letters in a sealed envelope from P6, P3, P4, P1, PS and P2 prior to obtaining their signatures on the petition. Mr. Pethick mailed these letters to the Board on March 15, 1988. The signatures on the petition which precede P2's signature must therefore have been obtained on or before March 15, 1988. There is no evidence that the signatures were obtained in any order other than the order in which they appear on the petition. As P16's signature precedes the signature of P2, that signature must have been obtained on or before March 15, 1988.

21. According to Mr. Pethick, P4 signed the petition on March 15th at approximately 6:55 a.m. in the employee lunchroom. P4 had telephoned Mr. Pethick the day before and had asked to sign the petition at the end of P4's shift. P4 works the 11:00 p.m. - 7 a.m. shift. Mr. Pethick next testified that he obtained the signature of P1 at approximately 3:10 p.m. on March 15th in the parking lot at Grace Villa. P1 works the 7 a.m. - 3:00 p.m. shift. P1 had also telephoned Mr. Peth­ick the night before and the two had arranged to sign the petition after work at Mr. Pethick's van in the parking lot. P1 did in fact sign in Mr. Pethick's van and although others were present further away in the parking lot, no one else was in the van when P1 signed. Mr. Pethick testified that P16 (whose signature appears next on the petition) signed the petition at approximately 7:00 p.m. at P16's residence. Thereafter however, he testified that the next four signatures on the petition (P17, P18, PS and P2) were all obtained on March 15, 1988 in the employee lunchroom during those employees' lunch or break periods. It is difficult to understand how four signatures obtained during the course of the workday could sequentially follow signatures obtained at the end of the shift (3:10) or in the early evening (7:00 p.m.).

22. This apparent contradiction in and of itself however would not have caused the Board undue concern. The failure of a witness to recall precisely the exact dale, a particular time or a par­ticular location when or where an employee signed the petition, or even the erroneous testimony in respect of such matters, in isolation will not necessarily impugn the credibility of a witness or call into question the voluntariness of the petition. What has caused the Board concern, and one of the reasons we find that the objecting employees have not discharged the onus cast upon them, arises from Mr. Pethick's failure to disclose a material fact in examination-fri-chief, his admission to that fact (albeit with an explanation) during cross-examination and the relationship of that fact to the remainder of Mr. Pethick's evidence concerning the events of March 15th.

23. In examination-in-chief, Mr. Pethick did not mention that he left the workplace early on March 15th. Indeed, his evidence was to the contrary, namely that he obtained P1's signature on the petition at the end of the shift at approximately 3:10 in the parking lot. During extensive cross-examination, however, Mr. Pethick testified that on March 15th he left work early at approx­imately 2:20 p.m. His purpose for leaving work early was to attend at a medical supplies store to pick up either a sponge cushion or cervical collar which was required for a patient at Grace Villa. This medical supplies store was approximately ten to fifteen minutes' drive from Grace Villa. It is not unusual for Mr. Pethick to pick up medical supplies of this sort. On the 15th Mr. Pethick also mailed by registered mail the six letters which he had received from certain employees. Mr. Peth­ick testified that he mailed the letters after he had attended at the medical supplies store. In response to a question in cross-examination as to whether he returned to work that day, he specifi­cally answered "no" and explained that it was understood that he would bring the medical supplies to work the following day. In answer to a subsequent question from the Board, Mr. Pethick indi­cated that he did not return to Grace Villa on that day. His testimony in cross-examination was thus materially-different from his evidence in chief regarding the time, place and circumstances under which P1 signed the petition.

24. Similarly, in examination-in-chief, Mr. Pethick failed to refer to the fact that on March 16th he also left work early. In cross-examination, however, his evidence disclosed that he left work at approximately 2:00 p.m. on that day for the purpose of making a bank deposit for the hos­pital. In this instance, he agreed that it was "unusual" for him to make such a deposit, although he did recall having made a similar deposit some time ago. Again, in response to a question in cross-examination, Mr. Pethick answered that he did not return to work that day. In his evidence-in-chief, however, Mr. Pethick testified that on March 16th he obtained P19's signature on the peti­tion at approximately 4:00 p.m. at P19's residence, and the signature of P20 in the hospital parking lot at 4:30 p.m. Mr. Pethick had made arrangements to meet P20 in the parking lot at that time in a telephone conversation on March 15th. In response to the question in examination-in-chief as to how he got to P19 residence, Mr. Pethick testified that he had arranged it "shortly after 3:00 on March 16th". Under cross-examination, Mr. Pethick's recollection of obtaining P19's signature was what he termed "a bit foggy" and he could not recall whether P19 signed at P19's home or at work. Similarly, in cross-examination he was not "quite sure" about the time of P20's signing indicating that it could have been around 3:30. Mr. Pethick, mailed the petition to the Board on March 16th sometime before 5:00 p.m.

25. On the whole, Mr. Pethick's evidence during cross-examination was much less open and forthright. When questioned about his early departures on two successive days, the days on which he mailed first the letters and then the petition itself, Mr. Pethick's evidence was hesitant and on occasion evasive. In light of Mr. Pethick's contradictory evidence concerning the events of March 15th and 16th, and his demeanour while testifying about those dates, we are of the view that his evidence on other points is suspect. From the evidence as presented, we also conclude that Mr. Pethick did, or at the very least that employees would perceive that Mr. Pethick had, left work early, for purposes relating to the petition in opposition to the trade union's application for certifi­cation (in this regard see for example Irwin Toy Limited [1971] OLRB Rep. Feb. 52, Saga Investments Ltd. [1970] OLRB Rep. July 452, G. Smith Produce Company [1974] OLRB Rep. June 402, N.J. Spivak [1976] OLRB Rep. April 158). These two factors taken together with (a) the fact that the petition was signed on company premises, (b) on occasions when other employees would nor­mally expect Mr. Pethick to be in the company of his supervisor Ms. Cream who was conveniently absent from the area on the four successive workdays when the petition was signed in the lunch­room, and (c) in light of our determination on the effect of the six letters as addressed below, we find that the objectors have not discharged the onus of proving that the statement of desire is a vol­untary expression of the true wishes of the employees. Although it may be that none of these six factors standing alone would be sufficient to cast doubt upon the voluntariness of the petition, their cumulative effect have caused us to doubt the reliability of the document as a voluntary expression of the true wishes of the employees.

26. Section 73(1) and section 73(5) of the Board's Rules of Procedures state:

73.-(1) Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a decla­ration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i) the return mailing address of the person who files the evidence, objection or signification, and

(ii) the name of the employer; and

(b) is filed not later than the terminal date for the application.

(5) The Board may dispose of the application without considering the statement of desire of any employee who fails to appear in person or by a representative and adduce evidence that includes testimony in the personal knowledge and observation of the witnesses as to,

(a) the circumstances concerning the origination of the statement of desire; and

(b) the manner in which each signature on the statement of desire was obtained.

In cases of this sort, the onus of establishing that the petition is a voluntary expression of the true wishes of the employees, and therefore to call evidence as to the origination of the petition and the circumstances in which each signature was obtained falls upon the objecting employees.

27. In this case, in addition to the petition about which Mr. Pethick testified, the Board also received six separate letters from six individual employees at Grace Villa. Each letter was con­tained in a separate, sealed envelope. The six sealed envelopes were placed in one large envelope and sent by Registered mail on March 15th and received by the Board on March 16th. The petition on the other hand was mailed on March 16th and received by the Board on the 17th. Mr. Pethick testified that the authors of the six letters had consulted him about how they could withdraw their signification in favour of union membership. Each individual requested information about how or what he/she could do to withdraw their union membership. Mr. Pethick suggested to each person that he/she write a letter to the Board setting out the reasons why they wanted to withdraw their union membership evidence. Mr. Pethick was not the author of these letters, did not assist or aid the authors of the letters in drafting the letters and indeed did not know of the contents of the let­ters until that information was provided to his counsel by the Board. Mr. Pethick had requested each of these individuals to put their letter in a sealed envelope which he did not open. Each of the authors of the letters also signed the petition. The letters were given to Mr. Pethick "just before their signature on the petition ... on the same day they signed the petition". The Board was not presented with any other or further evidence concerning these letters.

28. Counsel on behalf of the objectors argued that the six letters were not relevant to the Board's determination (although the letters did formally comply with Rule 73(1)) and need not be considered by the Board. Counsel argued that the signatures of these six employees on the petition after they had written the letters meant that the Board needed only to look at the petition to see if the numerical threshold of fifty-five per cent had been met. In order to meet this numerical thresh­old, there was no need to consider the six additional letters. In addition, counsel argued that the contents of the letters were innocuous and reflected a classic "change of heart" by these employ­ees. It was his submission that the letters were not reflective of employer interference or employer participation in the petition.

29. In our opinion, the language of Rule 73(5) is permissive and discretionary. Although the Board may dispose of an application without considering the statement of desire of any person who fails to appear in person or by a representative, we are not compelled to do so. We may con­sider the application and such a statement of desire notwithstanding the absence of the employee or the employee's representative if we consider it fair and just to do so. In the circumstances of this case, in view of the fact that these letters were provided to Mr. Pethick by their authors contempo­raneous with their signature on the petition we consider it relevant, appropriate and proper to con­sider these "signification(s) by employees that they no longer wish to be represented by a trade union". Neither can we agree with counsel's position that the contents of these letters are innocu­ous as at least one of the letters links the employee's perception of his/her job security to his/her support or non-support of the union's application. The evidence concerning these letters falls short of meeting the requirements of Rule 73(5) in that we do not have any "testimony in the personal knowledge and observation of the witness as to:

(a) the circumstances concerning the origination of the statement of desire; and

(b) the manner in which each signature on the statement of desire was obtained.

30. In the circumstances of this case and for all the reasons cited herein, we find that the evidence before us falls short of discharging the onus of proving that the statement of desire is a voluntary expression of the true wishes of the employees.

31. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on March 18, 1988, the terminal date fixed for this applica­tion and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act. This is so regardless of whether Mr. Surette is to be included or excluded from the bargaining unit and regardless of whether maintenance employees are included or excluded from the bargaining unit description. Mr. Surette is the only employee described as a maintenance employee. The applicant's right to certification cannot be affected by the Board's ultimate decision on the issue of Mr. Surette's inclusion or exclusion from the bargaining unit.

32. Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act, and pending final resolution of the description and composition of the bargaining unit, hereby certifies the applicant as bargaining agent for all employees of the respondent in London, save and except registered nurses, graduate nurses, undergraduate nurses, paramedical employees, maintenance employees, supervisors, persons above the rank of supervisor, office, clerical and sales staff.

Clarity Note I

For the purpose of clarity, the term 'paramedical' includes, occupational therapists, speech therapists, speech pathologists, physiotherapists, thera­peutic and administrative dieticians, registered and non-registered pathologi­cal technologists, radiological technologists (radiography), radiological tech­nologists (nuclear medicine), registered and non-registered respiratory technologists, registered and non-registered EEG, ECG and ophthalmology technicians, registered and non-registered ultrasound technologists, glau­coma technicians, ear, nose and throat technicians, cardiovascular techni­cians, electroencephalographists, electrical shock therapists, laboratory tech­nicians, laboratory assistants, electronic technicians, psychometrists, pharmacists, pharmacy technicians, psychologists, remedial gymnasts, medi­cal records librarians, social workers, child care workers, nutritionists, dental health educators and bio-medical technicians.

The Board notes the agreement of the parties that "paramedical personnel" also includes psychometry technicians, chiropodists, prenatal instructors, audiologists, research assistants, dental assistants, perfectionists, clinical instructors, medical photographer technical assistants, entrostomol thera­pists, respiratory therapists, hyperbaric controllers, hyperbaric attendants, health records administrators, occupational therapy assistants.

Clarity Note II

It is agreed and understood that the term 'office, clerical and sales staff would include giftshop.

33. Upon reflection and reconsideration it appears that the ultimate disposition of this application and the issuance of a formal certificate may be unnecessarily delayed if the board appoints a Labour Relations Officer and has to await the officer's report prior to resolving the issues surrounding Mr. Surette's ultimate inclusion in or exclusion from the bargaining unit. The sheer logistics associated with the appointment of a Labour Relations Officer (including the mak­ing of the arrangements for the conduct of an inquiry into duties and responsibilities, the typing of the officer's report, the delay in awaiting the parties submissions concerning that report), generally cause the appointment of a Labour Relations Officer to be an inherently slow, expensive and time-consuming process. For this reason, in the circumstances of this case this Board is drawn towards the process and procedure set down by the board in Green Gables Manor Incorporated, [1986] OLRB Rep. May 626. In that case the Board stated:

34. Obviously there is a dispute between the parties which may ultimately have to be resolved after hearing evidence about what the disputed individuals actually do; moreover, this is not the first time that there has been some question as to where to draw the "managerial line" in hospi­tals or nursing homes....

35. The Board's approach to "managerial exclusion" has been succinctly summarized in Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug. 1121. In that case the Board affirmed that the important question is the extent to which so-called managerial employees regu­larly make significant decisions affecting the economic lives of their fellow employees (hiring, firing, promotions, demotions, discipline, granting wage increases, etc.), thereby raising a potential conflict of interest with them. But this is not the same as "supervisory" or "co­ordinating" activities which are often largely routine, carried out within a I)re-established frame­work of rules and policies, and subject to real managerial authority which is actually exercised from above. In addition, persons who perform technical functions or have specialized technical professional training will commonly supervise or co-ordinate the work of other employees with­out triggering their exclusion from the Labour Relations Act. If that were the case, registered nurses would be denied the opportunity of collective bargaining since their professional respon­sibilities will often involve the coordination of the work of employees with lesser training. [In this regard, see: Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84, where the Board rejected an employer's contention that its entire complement of full-time and part-time registered nurses exercised managerial functions within the meaning of section 1(3)(b) of the Act; and Ottawa General Hospital, [1984] OLRB Rep. Sept. 1199, where a similar request to exclude registered nurses was also rejected. See also, in general, J. Sack and M. Mitchell, Ontario Labour Rela­tions Board Law and Practice (1985), Butterworths & Co. (Canada) Ltd., Toronto at pages 79-98.]

36. Certification applications usually come on for hearing and are disposed of quickly with little in the way of formal pleadings. However, as a result, disputes about the bargaining unit may only arise on the morning of the hearing when the union first sees the employer's proposed list of employees, and the parties may not have had the opportunity to fully investigate the facts or the Board decisions potentially bearing on their positions. They may even have quite different per­ceptions of the disputed individuals' authority (or how the Board would regard it) which could be clarified by further consideration. If that appears to be the case (as it is here), it may well be appropriate for the Board to borrow from the Court practice of pleading and discovery in order that both sides and the Board itself will have a clear picture of the factual issues in dispute.

37. In the circumstances of this case, before appointing a Labour Relations Officer and embark­ing upon a time-consuming and expensive process of litigation, the Board considers it appropri­ate to require further clarification and elaboration of those duties and job functions which, in the employer's submission, would warrant a finding that the disputed individuals are not "em­ployees" within the meaning of the Labour Relations Act. Such written statement should include a detailed recital of the duties regularly performed by the disputed individuals, highlighting those which involve the conflict of interest which section 1(3)(b) was designed to avoid, and cit­ing concrete instances of the exercise of those functions. It should be forwarded to the Board and to the union within fourteen days of the receipt of this decision. The trade union representa­tive will then have a further fourteen days to file with the Board a written submission, indicating the extent of its agreement or disagreement with the facts said by the employer to truly repre­sent the employees' duties and such additional facts as the union may consider relevant.

38. For the foregoing reasons and pursuant to section 102(13) of the Act, the Board directs the parties to file with each other and the board the information mentioned above. It may be that in examining their position the parties will be able to resolve or narrow some of the issues in dis­pute between them. In any event, it is the Board's view that the filing of this material will facili­tate the orderly disposition of whatever outstanding matters remain in dispute.

39. In the circumstances of this case therefore, before appointing a Labour Relations Offi­cer, the Board considers it appropriate to require further clarification and elaboration of those duties and responsibilities which, in the employer's submission, would warrant a finding that the disputed individual is not an "employee" within the meaning of the Labour Relations Act. Such written statement should include a detailed recital of the duties regularly performed by the dis­puted individuals, highlighting those which involve the conflict of interest which section 1(3)(b) was designed to avoid, and citing concrete instances of the exercise of those functions. It should be forwarded to the Board and to the union within fourteen days of the receipt of this decision. The trade union representative will then have a further fourteen days to file with the Board a written submission, indicating the extent of its agreement or disagreement with the facts said by the employer to truly represent the employees' duties and such additional facts as the union may consider relevant. Similarly, the Board considers it appropriate to require further clarification and elaboration from the employer on the facts and reasons why maintenance employees should be excluded from the bargaining unit description as well as the facts upon which the respondent relies in support of is position that maintenance employees and/or Ken Surette do not have a community of interest with that portion of the bargaining unit upon which the parties have agreed.

40. For the foregoing reasons and pursuant to section 102(13) of the Act, the Board directs the parties to file with each other and the Board the information mentioned above. It may be that in examining their position the parties will be able to resolve or narrow some of the issues in dis­pute between them. In any event, it is the Board's view that the filing of this material will facilitate the orderly disposition of whatever outstanding matters remain in dispute.

DECISION OF BOARD MEMBER J. W. MURRAY; September 12,1988

1. I cannot agree with the decision of the majority of the Board to certify the applicant.

2. There was no evidence introduced to show that management was involved in any way; indeed counsel for the applicant agreed with this, but claims that this could be inferred. Many things could be inferred but management involvement is not one of them.

3. There was no evidence of any threats or coercion by anyone.

4. This is a relatively small hospital and it is quite probable many people knew of Mr. Pethick's petition efforts, but mere knowledge surely cannot affect the statements of desire as to their voluntariness.

5. Much seems to have been made of Pethick's leaving work a bit early on two days. He got permission to do so. It is alleged that he had a conversation with Ms. Cream on a stairwell. I find it hard to believe this was a conversation, but rather a couple of remarks made in passing one another. I find nothing sinister in that. It is true that many of the signatures were obtained in the lunchroom, but they appear to have been during lunch or coffee breaks and with no management people around. I cannot find that any alleged time discrepancies are more than difficulty in placing the exact hour of certain events.

6. In lack of specific evidence to show the statements of desire were in any way tainted, I would order a vote.